That on or about August 8, 1999, at about 7:50 o'clock in the morning at Barangay Bolinsong, Municipality of Bonifacio, Province of Misamis Occidental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, with intent to kill, armed with a short firearms (sic), did then and there willfully, unlawfully, feloniously suddenly and treacherously shoot HAIDE CAGATAN at the back penetrating through the neck which cause(d) the instant death of said victim and that he had no chance to avoid or defend himself from the attack.
CONTRARY TO LAW.
WHEREFORE, premises considered, the Court finds all the accused guilty beyond reasonable doubt of the crime of Homicide, with one aggravating circumstance of dwelling, and applying the Indeterminate Sentence Law, hereby sentences each one of them to a penalty of imprisonment ranging from 6 years and 1 day, as its minimum to 17 years, 4 months and 1 day, as its maximum, to suffer the accessory penalties provided for by law, to pay jointly and solidarily, the heirs of the victim P50,000.00, as civil liability and to pay the costs.
Let all the accused be credited of the time that they were placed in jail under preventive imprisonment, applying the provisions of Art. 29 of the Revised Penal Code, as amended.
SO ORDERED.
xxx The medical report of "gunshot wound left scapular region" which the doctor interpreted to be at the back of the left shoulder is not sufficient to prove treachery, it being susceptible to 2 different interpretations: one: that victim had his back towards his assailants, and two: that he was actually facing them but he turned around for cover upon seeing the armed "group of Berting". The Court is inclined to believe the second interpretation because the victim was able to see and identify his assailants. Two prosecution witnesses testified that the victim identified to them who shot him.18
WHEREFORE, the appealed Decision is hereby MODIFIED. Pursuant to Section 13, paragraph 2 of Rule 124 of the Rules of Criminal Procedure, We render JUDGMENT without entering it, as follows:
- We find all accused guilty beyond reasonable doubt of MURDER. Each accused is hereby SENTENCED TO SUFFER the penalty of reclusion perpetua.
- The Division Clerk of Court is hereby directed to CERTIFY and ELEVATE the entire records of this case to the Supreme Court for review.
SO ORDERED.20
I
THE COURT OF APPEALS GRAVELY ERRED IN CONVICTING ACCUSED-APPELLANTS OF MURDER DESPITE FAILURE OF THE PROSECUTION TO PROVE THE IDENTITY OF THE ASSAILANT AS WELL AS ACCUSED-APPELLANTS' GUILT BEYOND REASONABLE DOUBT.II
THE COURT OF APPEALS GRAVELY ERRED IN CONSIDERING THE QUALIFYING CIRCUMSTANCE OF TREACHERY, ON THE ASSUMPTION THAT INDEED ACCUSED-APPELLANTS ARE GUILTY.
Atty. Fernandez: | |
Q. | And where were you at that time when he was shot? |
A. | In the sala. |
Q. | Could you possibly tell the Honorable Court what actually took place when your son was shot? |
A. | He came from the kitchen at that time when I heard gunreports, he said "Nay" help me because I was shot by Berting.29 |
xxx | |
Atty. Anonat: | |
Q. | And that affidavit was executed by you at the Bonifacio Police Station? |
A. | Yes. |
xxx | |
Q. | And you affirm to the truth of what you have stated in this affidavit? |
A. | Yes. |
Q. | On question No. 7 you were asked in this manner - "Giunsa man nimo pagkasayod nga sila maoy responsible sa kamatayon sa imong anak? How do you know that they were responsible (for) the death of your son? And your answer is this "Tungod kay ang biktima nakasulti pa man sa wala pa siya namatay ug ang iyang pulong mao nga TABANG NAY KAY GIPUSIL KO NILA NI BERTING ug nasayod ako nga sila gumikan sa akong mga testigos." which translated into English - Because the victim was able to talk before he died and the words which he told me help me Nay I am shot by the group of Berting and I know this because of my witnesses. 30 |
xxx |
Section 42. Part of the res gestae. - Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of the res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae. (36 a)
xxx Positive identification pertains essentially to proof of identity and not per se to that of being an eyewitness to the very act of commission of the crime. There are two types of positive identification. A witness may identify a suspect or accused in a criminal case as the perpetrator of the crime as an eyewitness to the very act of the commission of the crime. This constitutes direct evidence. There may, however, be instances where, although a witness may not have actually seen the very act of commission of a crime, he may still be able to positively identify a suspect or accused as the perpetrator of a crime as for instance when the latter is the person or one of the persons last seen with the victim immediately before and right after the commission of the crime. This is the second type of positive identification, which forms part of circumstantial evidence, which, when taken together with other pieces of evidence constituting an unbroken chain, leads to only fair and reasonable conclusion, which is that the accused is the author of the crime to the exclusion of all others. If the actual eyewitnesses are the only ones allowed to possibly positively identify a suspect or accused to the exclusion of others, then nobody can ever be convicted unless there is an eyewitness, because it is basic and elementary that there can be no conviction until and unless an accused is positively identified. Such a proposition is absolutely absurd, because it is settled that direct evidence of the commission of a crime is not the only matrix wherefrom a trial court may draw its conclusion and finding of guilt. If resort to circumstantial evidence would not be allowed to prove identity of the accused on the absence of direct evidence, then felons would go free and the community would be denied proper protection.42
2.The essence of treachery is in the mode of attack,
not in the relative position of the victim and the assailant
Atty. Fernandez: xxx Q. Were you present when the late Haide Cagatan was shot? A. Yes, I was present. Q. Could you possibly tell the Court in what particular place you were when the alleged incident took place? A. I was in the ground floor. Q. What were you doing there? A. I attended my child (to) answer(ing) the call of his (sic) nature. Q. Now, could you possibly describe before this Honorable Court, Mrs. Cagatan, the exact event that took place when the alleged shooting incident took place in your presence? A. At that time, I attended my child (to) answer(ing) the call of (his) nature and after doing that when I was about to stand up to go up I saw the Villarico's was (sic) at the back of the kitchen. Q. At the time you saw them was (sic) any one of them saw you likewise? A. There was. Q. Who was he? A. Gilberto Villarico, Jr. Q. At that precise time when you saw them and one of them saw you, what did Villarico, Jr. do? A. He aimed his gun to me. Q. Could you possibly demonstrate that to the Court? A. (Witness demonstrated by squatting position) Q. Now at that precise moment when you saw Villarico, Jr. on a squatting position pointing his gun at you, what was the exact action that you did? A. When he aimed his gun to me I immediately dropped to the ground. xxx Q. Since you were personally present could you still remember Mrs. Cagatan how many gun burst you head at that precise moment when you dropped to the ground because Villarico Jr. was aiming his gun at you. How many gun burst did you hear? A. Three gunbursts. Q. Let us go back to the time when Villarico, Jr. pointed his gun to you. Do you still remember what were the other accused doing or where were they at that time? A. I can remember. Q. Please tell the Honorable Court. A. Gilberto Villarico, Sr. was on the right side; Ricky Villarico was on the left side and behind Gilberto Villarico, Sr. was Jerry Ramientos and behind Ricky Villarico is (sic) Gilberto Villarico Jr. Q. What were Ricky and Gilberto Villarico, Jr. doing at the time? A. They were also dropping themselves on the ground and aimed their guns. Q. To what particular object that they were aiming their guns? A. To the door of our kitchen. Q. How about Ramientos, where was he at that time when you saw the accused pointing their guns towards the door of your kitchen? A. Ramientos was standing behind Gilberto Villarico Sr.49
Likewise, Francisco saw the four accused in the same positions that Remedios had seen them moments prior to the shooting. He claimed that they were aiming their firearms at the kitchen and continued aiming their firearms even as they were leaving the crime scene, viz:
Atty. Fernandez: xxx Q. Now you said that you saw all of the accused at the time when your late son Haide Cagatan was murdered in the evening of August 8. Could you possibly explain to this Honorable Court at the very first time what did you see? A. After I came from the toilet I was proceeding to the kitchen because Haide was preparing food and he was calling for dinner. When Haide Cagatan was calling for dinner and at the time I was proceeding to the door of the kitchen, when I was near the door I heard the gun shots. Q. At the time when you heard gunshots, what did you do? A. I laid down flat on the ground while my head is (sic) looking up and there I saw the 3 Villaricos bringing a revolver. They came from aiming their guns towards upstairs and they are about to withdraw from that place together with Jerry Ramientos. xxx Q. Now, since you said that you saw the accused Villaricos, could you possibly tell the Court, what were their responsible position(s) in relation to the door of the kitchen? A. They were in shooting position as they aimed upward and they were bringing revolver aiming upstairs. Q. In relation to the door of the kitchen, could you possibly tell the Court what were their responsible position at that time when you saw them? A. The four of them were situated in front of the kitchen door. Villarico Jr. and Villarico Sr. were facing each other while Ricky Villarico and Jerry Ramientos were also facing each other.50
A perusal of the information shows that treachery was properly alleged to qualify the killing of Heide [sic] Cagatan to murder. The prosecution was likewise able to prove treachery through the element of surprise rendering the victim unable to defend himself. In this case, the evidence shows that the victim, who was in the kitchen preparing dinner, could be seen from the outside through the holes of the wall. The witnesses consistently described the kitchen's wall as three feet high bamboo splits (sa-sa), accented with bamboo splits woven to look like a chessboard with 4-inch holes in between. The accused-appellants, likewise, positioned themselves outside the kitchen door at night where the victim could not see them. When the accused-appellants shot him, he was caught unaware.51
The litmus test[,] therefore, in the determination of the civil indemnity is the heinous character of the crime committed, which would have warranted the imposition of the death penalty, regardless of whether the penalty actually imposed is reduced to reclusion perpetua.
Endnotes:
1 CA Rollo, pp. 173-184; penned by Associate Justice Hakim S. Abdulwahid, and concurred by Associate Justice Bennie Adefuin-Dela Cruz (retired) and Jose I. Sabio, Jr. (retired).
2 At times spelled as Ramientos in the records and in the RTC decision.
3 Rollo, pp. 45-69; penned by Judge Resurrection T. Inting.
4 Records, pp. 1-2.
5 TSN, March 29, 2000, pp. 5-6.
6 TSN, March 10, 2000, pp. 6-7.
7 TSN, February 24, 2000, pp. 19 and 24.
8 See Exhibits A and B for the Prosecution (Records, pp. 53-54).
9 TSN, May 31, 2000, pp. 4-5.
10 TSN, July 21, 2000, pp. 3-17.
11 TSN, April 11, 2000, pp. 43-58.
12 TSN, May 31, 2000, p. 14-15.
13 TSN, June 29, 2000, pp. 4-5.
14 TSN, April 4, 2000, pp. 45-57.
15 TSN, April 4, 2000, pp. 3-17.
16 Records, p. 138.
17 The distance between the house of Gilberto, Sr. and Haide's house was only 100 meters (TSN, May 31, 2000, p. 21). Gilbert, Jr. testified that his girlfriend's house was only 500 meters away from Bolinsong (TSN, May 31, 2000, pp. 19-21). Ricky claimed that the house of his aunt was only 700 meters from Haide's house (TSN, June 29, 2000, p. 9).
18 Records, p. 137.
19 CA Rollo, p. 173-184.
20 Id., p. 183.
21 G.R. No. 127663, March 11, 1999, 304 SCRA 611, where the Court pointed out:
Under paragraph 16, Article 14 of the Revised Penal Code, the qualifying circumstance of treachery is present when the offender employs means, methods, or forms in the execution of the crime which tend directly and especially to ensure its execution without risk to himself arising from any defensive or retaliatory act which the victim might make (People vs. Santos, 270 SCRA 650 [1997]). The settled rule is that treachery can exist even if the attack is frontal if it is sudden and unexpected, giving the victim no opportunity to repel it or defend himself against such attack. What is decisive is that the execution of the attack, without slightest provocation from the victim who is unarmed, made it impossible for the victim to defend himself or to retaliate (People vs. Javier, 269 SCRA 181 [1997]).
22 People v. Pineda, G.R. No. 141644, May 27, 2004, 429 SCRA 478; People v. Esmale, G.R. Nos. 102981-82, April 21, 1995, 243 SCRA 578.
23 People v. Fronda, G.R. No. 130602. March 15, 2000, 328 SCRA 185; Natividad v. Court of Appeals, G.R. No. L-40233, June 25, 1980, 98 SCRA 335, 346; People v. Beltran, L-31860, November 29, 1974, 61 SCRA 246, 250; People v. Manambit, G.R. Nos. 72744-45, April 18, 1997, 271 SCRA 344, 377; People v. Maongco, G.R. Nos. 108963-65, March 1, 1994, 230 SCRA 562, 575.
24 People v. Raquel, G.R. No. 119005, December 2, 1996; 265 SCRA 248, 259; People v. Salguero, G.R. No. 89117, June 19, 1991, 198 SCRA 357; Natividad v. Court of Appeals, G.R. L-40233, June 25, 1980, 98 SCRA 335, 346.
25 Pecho v. People, G.R. No. 111399, September 27, 1996, 262 SCRA 518, 533; Perez v. Sandiganbayan, G.R. Nos. 76203-04, December 6, 1989, 180 SCRA 9; People v. Sadie, No. L-66907, April 14, 1987, 149 SCRA 240; U.S. v. Gutierrez, 4 Phil. 493 (1905).
26 People v. Pidia, G.R. No. 112264, November 10, 1995, 249 SCRA 687, 702.
27 G.R. No. 163217, April 18, 2006, 487 SCRA 273.
28 Id., p. 301; see also People v. Evangelista, G.R. No. 84332-33, May 8, 1996, 256 SCRA 611 (holding that where the identification made by the wife of the victim was held to be reliable because she had known the accused for a long time and was familiar with him, considering her being positive that it was the accused who had shot her husband although she saw only the back part and the body contour of the assailant. At the time she saw him, the accused was only four meters away, and there was sufficient illumination from a lamp post six meters away from the house of the victim and his wife); People v. Jacolo, G.R. No. 94470, December 16, 1992, 216 SCRA 631 (holding that where the conditions of visibility were favorable and the witness did not appear to be biased against the man on the dock, his or her assertions as to the identity of the malefactor should normally be accepted, more so where the witnesses were the victims, or near-relatives of the victims, because these people usually strove to remember the faces of the assailants).
29 TSN, February 24, 2000, p. 19; bold emphasis supplied.
30 Id., p. 24; bold emphasis supplied.
31 Alhambra Bldg. & Loan Ass'n v. DeCelle, 118 P. 2d 19, 47 C.A. 2d 409; Reilly Tar & Chemical Corp. v. Lewis, 61 N.E. 2d 297, 326 Ill. App. 117.
32 Kaiko v. Dolinger, 440 A. 2d 198, 184 Conn. 509; Southern Surety Co. v. Weaver, Com. App. 273 S.W. 838.
33 People v. Sanchez, G.R. No. 74740, August 28, 1992, 213 SCRA 70.
34 Molloy v. Chicago Rapid Transit Co., 166 N.E. 530, 335 Ill. 164; Campbell v. Gladden, 118 A. 2d 133, 383 Pa. 144, 53 A.L.R. 2d 1222.
35 People v. Guillermo, G.R. No. 147786, January 20, 2004, 420 SCRA 326; People v. Dela Cruz, G.R. No. 152176, October 1, 2003, 412 SCRA 503; People v. Ignas, G.R. Nos. 140514-15, September 30, 2003, 412 SCRA 311; People v. Lobrigas, G.R. No. 147649, December 17, 2002, 394 SCRA 170; People v. Peralta, G.R. No. 94570, September 28, 1994, 237 SCRA 218; People v. Maguikay, G.R. Nos. 103226-28, October 14, 1994, 237 SCRA 587, 600.
36 Article 8, Revised Penal Code.
37 People v. Ronquillo, G.R. No. 126136, April 5, 2002, 380 SCRA 266; People v. Geguira, G.R. No. 130769, March 13, 2000, 328 SCRA 11, 32-33.
38 People v. Geguira, supra.
39 People v. Sotes, G.R. No. 101337, August 7, 1996, 260 SCRA 353, 365; People v. Pablo, G.R. Nos. 120394-97, January 16, 2001, 349 SCRA 79.
40 People v. Peralta, G.R. No. L-19069, October 29, 1968, 25 SCRA 759, 776-777; People v. Pablo, supra.
41 G.R. No. 133025, February 17, 2000, 325 SCRA 835.
42 Id., at pp. 849-850; bold emphasis supplied.
43 People v. Gonzales, G.R. No. 140676, July 31, 2002, 385 SCRA 573, 580; People v. Ocampo, G.R. No. 80262, September 1, 1993, 226 SCRA 1; People v. Herico, G.R. Nos. 89682-83, December 21, 1990, 192 SCRA 655; People v. Fulinara, G.R. No. 88326, August 3, 1995, 247 SCRA 28; People v. Cardesan, G.R. No. L-29090, April 29, 1974, 56 SCRA 631.
44 People v. Abendan, G.R. No. 132026-27, June 28, 2001, 360 SCRA 106, 121-122.
45 CA Rollo, p. 182.
46 People v. Escote, Jr., G.R. No. 140756, April 4, 2003, 400 SCRA 603, 632; People v. Ave, G.R. Nos. 137274-75, October 18, 2002, 391 SCRA 225, 246.
47 People v. Sanchez, G.R. No. 188610, June 29, 2010; People v. Dela Cruz, G.R. No. 188353, February 16, 2010, 612 SCRA 738, 747; People v. Escote, Jr., supra, pp. 632-633.
48 People v. Aguilar, 88 Phil 693 (1951).
49 TSN, March 29, 2000, pp. 5-6.
50 TSN, March 10, 2000, pp. 5-7.
51 CA Rollo, pp. 182-183.
52 Article 248. Murder. -- Any person who, not falling within the provisions of Article 246 shall kill another, shall be guilty of murder and shall be punished by reclusion perpetua to death, if committed with any of the following attendant circumstances:
1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense or of means or persons to insure or afford impunity.
2. In consideration of a price, reward, or promise.
3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a railroad, fall of an airship, or by means of motor vehicles, or with the use of any other means involving great waste and ruin.
4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic or other public calamity.
5. With evident premeditation.
6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse. (As amended by Section 6, Republic Act No. 7659, approved on December 13, 1993).
53 Article 2206. The amount of damages for death caused by a crime or quasi-delict shall be at least three thousand pesos, even though there may have been mitigating circumstances. In addition:
(1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity shall be paid to the heirs of the latter; such indemnity shall in every case be assessed and awarded by the court, unless the deceased on account of permanent physical disability not caused by the defendant, had no earning capacity at the time of his death;
(2) If the deceased was obliged to give support according to the provisions of article 291, the recipient who is not an heir called to the decedent's inheritance by the law of testate or intestate succession, may demand support from the person causing the death, for a period not exceeding five years, the exact duration to be fixed by the court;
(3) The spouse, legitimate and illegitimate descendants and ascendants of the deceased may demand moral damages for mental anguish by reason of the death of the deceased.
54 Art. 2230. In criminal offenses, exemplary damages as a part of the civil liability may be imposed when the crime was committed with one or more aggravating circumstances. Such damages are separate and distinct from fines and shall be paid to the offended party.
55 G.R. No. 188602, February 4, 2010, 611 SCRA 633.
56 G.R. No. 137842, August 23, 2001, 363 SCRA 621, where the Court explained:
The term "aggravating circumstances" used by the Civil Code, the law not having specified otherwise, is to be understood in its broad or generic sense. The commission of an offense has a two-pronged effect, one on the public as it breaches the social order and the other upon the private victim as it causes personal sufferings, each of which is addressed by, respectively, the prescription of heavier punishment for the accused and by an award of additional damages to the victim. The increase of the penalty or a shift to a graver felony underscores the exacerbation of the offense by the attendance of aggravating circumstances, whether ordinary or qualifying, in its commission. Unlike the criminal liability which is basically a State concern, the award of damages, however, is likewise, if not primarily, intended for the offended party who suffers thereby. It would make little sense for an award of exemplary damages to be due the private offended party when the aggravating circumstance is ordinary but to be withheld when it is qualifying. Withal, the ordinary or qualifying nature of an aggravating circumstance is a distinction that should only be of consequence to the criminal, rather than to the civil, liability of the offender. In fine, relative to the civil aspect of the case, an aggravating circumstance, whether ordinary or qualifying, should entitle the offended party to an award of exemplary damages within the unbridled meaning of Article 2230 of the Civil Code.
57 Bersamin, Appeal and Review in the Philippines, 2nd Edition, Central Professional Books, Quezon City, p. 180; citing Hydro Resources Contractors Corporation v. Court of Appeals, G.R. No. 85714, November 29, 1991, 204 SCRA 309, 315; and Ortigas, Jr. v. Lufthansa German Airlines, G.R. No. L-28773, June 30, 1975, 64 SCRA 610.
58 Ibid., citing Casa Filipina Realty Corporation v. Office of the President, G.R. No. 99346, February 7, 1995, 241 SCRA 165.
59 People v. Satonero, G.R. No. 186233, October 2, 2009, 602 SCRA 769, 782; People v. Arbalate, G.R. No. 183457, September 17, 2009, 600 SCRA 239, 255.
60 People v. Martinez, G.R. No. 182687, July 23, 2009, 593 SCRA 732.
61 People v. Satonero, supra.
62 Supra, note 59.
63 G.R. No. 169641, September 10, 2009, 599 SCRA 20,
64 G.R. No. 169077, August 31, 2006, 500 SCRA 659, 676.
65 G.R. No. 170236, August 31, 2006, 500 SCRA 704, 720.